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No Fault Abuse Reexamined

December 2, 2011

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The Court of Appeals recently addressed no fault abuse in reassessing three cases that dealt with allegations of “serious injuries” resulting from motor vehicle accidents.
In <em>Perl v. Meher </em>and <em>Adler v. Bayer,</em> the Court reversed the Appellate Division, concluding that plaintiffs put forth evidence that was legally sufficient to make out their claims. In both instances, the plaintiffs had been initially examined by a physician who did not make contemporaneous quantitative measurements. Several years later, in preparation for trial, the physician made quantitative measurements regarding the plaintiffs’ limitation. The Court held that a physician who initially treats a patient need not make contemporaneous quantitative measurements since their primary concern is treating the patient. Taking the measurements years later - in preparation for trial - was deemed sufficient to meet the serious injury requirement. This decision clearly damages defendants’ abilities to obtain threshold dismissals, as it permits plaintiffs the opportunity to establish the existence of a serious injury years after their accident, in anticipation of trial, as well as in opposition to a defendant’s motion for summary judgment.
On a positive note for defendants, the Court affirmed the dismissal of <em>Travis v. Batchi,</em> holding that a physician’s conclusion that a plaintiff has a “mild partial permanent disability,” absent a description of the disability, is insufficient to meet the serious injury standard. 
<a href="http://www.nycourts.gov/ctapps/Decisions/2011/Nov11/206-208opn11.pdf">http://www.nycourts.gov/ctapps/Decisions/2011/Nov11/206-208opn11.pdf</a>

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